Demuth v. Daggy

26 Ind. 341

• Court: Indiana Supreme Court
• Decided: May 15, 1866
• Status: Published

Opinion

Erazer, J.

Demuth sued the appellees for work and labor, &c. Answer, 1. General denial. 2. That “ befoi’e the commencement of this suit, they fully paid all the plaintiffs’ demands against them.” 3. That “ on the--day of--, 1865, they and the plaintiff fully accounted to and with each other, and before the commencement of this suit defendants fully paid the balance found due said plaintiff, which he accepted in full satisfaction,” &c. The appellant questions the correctness of the action of the court below in overruling demurrers to the second and third paragraphs of the answer.

The objections-made to the second paragraph are, that it does not allege the date or amount of the payment, or to whom the payment was made. These objections are too technical and formal to be sustained under the code. The form of pleading payment, as given by the statute, answers two of them. 2 G. & H. 379. The date of the payment must be regarded also as matter of form when it is remembered that it need not be proved as alleged. Indeed, the statutory forms for the answers of accord and satisfaction, and for payment of part and tender of the balance, omit the date altogether.

J. A. Matson and F. T. Brown, for appellant. B. E. Williamson and A. Baggy, for appellees.

The remarks already made apply as well to the third paragraph of the answer. Wo regard it as amounting only to the defense of payment.

The judgment is affirmed, with costs.